Agata Fijalkowski and Raluca Grosescu have co-edited a new book on “Transitional Criminal Justice in Post-Dictatorial and Post-Conflict Societies” (Intersentia, 2015). Here is its abstract :

This volume considers the important and timely question of criminal justice as a method of addressing state violence committed by non-democratic regimes. The book’s main objectives concern a fresh, contemporary, and critical analysis of transitional criminal justice as a concept and its related measures, beginning with the initiatives that have been put in place with the fall of the Communist regimes in Europe in 1989.

The project argues for rethinking and revisiting filters that scholars use to interpret main issues of transitional criminal justice, such as: the relationship between judicial accountability, democratisation and politics in transitional societies; the role of successor trials in rewriting history; the interaction between domestic and international actors and specific initiatives in shaping transitional justice; and the paradox of time in enhancing accountability for human rights violations. In order to accomplish this, the volume considers cases of domestic accountability in the post-1989 era, from different geographical areas, such as Europe, Asia and Africa, in relation to key events from various periods of time. In this way the approach, which investigates space and time-lines in key examples, also takes into account a longitudinal study of transitional criminal justice itself.

Aleksandar Hemon, a well-known Bosnian writer, has stated in a recent interview that “the Dayton agreement was actually a constitutional continuation of war, whereby Bosnia was cemented in the structure, which does not permit it to live in peace.” Photo courtesy of esohap.org.

The European Court of Human Rights remains haunted by the dark chapter, of in particular, Central and Eastern European States. It has just before festive season delivered admissibility decision in the cases of Larionovs v. Latvia (application no. 45520/04) and Tess v. Latvia (no. 19363/05). Both cases arise from dealing with the past in Latvia. Mr Larionovs and Mr Tess were both convicted for crimes of humanity before Latvian courts convicted for their involvement in crimes against humanity concerning mass deportations of Latvian inhabitants to various, often remote, locations in Soviet Union in 1949. They complained to the Strasbourg court claiming that the Latvian criminal law had been retroactively applied in violation of violation of Article 7 (no punishment without law) of ECHR. The Court declared their complaint inadmissible for non-exhaustion of domestic remedies as they have not complained to the Latvian Constitutional Court. However, the Court noted as follows that the Latvian courts did not breach prohibition of rectroactivity by convicting Mr Larionovs and Tess:

the lack of statutory limitations and the possibility of convicting perpetrators of one of the gravest international crimes – “crimes against humanity including genocide” – irrespective of when such acts had taken place stems not only from the text of national law, but also from the very nature of that crime….After accession to the relevant international treaties, Latvia was bound to implement the principles contained therein. Importantly, the text of Article 681 of the 1961 Criminal Code defined the crime as a “crime against humanity including genocide”. It also referred to the definition of the crime “by the respective normative treaty legislation” and contained a reference to international law (see paragraph 103 above). Therefore, the Court rejects the applicants’ argument that their convictions were merely related to an interpretation and application of the relevant provisions. Their convictions were based on the provisions of the national criminal law, which transposed the relevant provisions of international law (para. 151).

This case is another in a series of cases dealing with the past in Central and Eastern European countries and another in the line of case where former Soviet partisans have been somehow unconvincingly arguing violation of prohibition of retroactivity concerning their domestic convictions for war crimes and crimes against humanity. Prosecutions of crimes against humanity, even if they were not criminalised at the time of commission, does not violate the prohibition of retroactivity since those crimes were already at the time of commission contrary to fundamental principles of humanity. By allowing exceptions to the principle of legality the international community recognized that protecting the rights of victims of crimes against humanity and international law was even more important than the principle of legality. Prosecutions of international crimes, whether in national legal orders or at the international level, are easier to accomplish if they take place in close proximity to the time of conflict, because evidence and memories are fresher. However, each transition from war to peace is different.

The complaints by Mr Larionovs and Tess were based on the flaw assumptions that they can absolve themselves from responsibility for crimes of humanity committed after the Second World War only by arguing that such acts were not prohibited at the time of commission. Full-fledged democracy, rule of law and reconciliation in any post-totalitarian society is never going to be achieved if the current political or ethnic opponents stubbornly insist on their narratives, without a will and a desire to try to understand the feelings and suffering of their neighbours with different ethnic origins. Compassion emerge difficulty without sacrifices and assuming responsibility as individuals and collective catharsis commences at a subconscious level. Guilt and shame conflict there with the prevailing feelings of forgetfulness of the worst offenses against humanity. Only when the feelings of shame and guilt emerge, slowly, and even then not in all situations, the catharsis processes emerge. Consolidation of democracy and reconciliation is therefore possible only on the basis of the pluralistic debate about the dark sides of Latvian transitional society. As long as those conditions are not met, Latvian and other Central and Eastern European society will continue to live in immature and subconsciously crippled societies, which instead of facing with the dark side of their past and the present, have been deliberately oblivious and have neglected them.